Legislative Council

LC Paper No. CB(2)1956/98-99
(These minues have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon CHEUNG Man-kwong
Hon LEE Wing-tat
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon SZETO Wah

Member Attending :

Hon LEUNG Yiu-chung

Public Officers Attending :

Mr Michael M Y SUEN

Secretary for Constitutional Affairs

Mr Clement C H MAK

Deputy Secretary for Constitutional Affairs (1)

Mr James O' NEIL

Deputy Solicitor Counsel

Mr Peter WONG

Senior Assistant Solicitor General

Mr Philip TANG

Assistant Secretary for Constitutional Affair (3B)

By Invitations :

Hong Kong and Kowloon Trades Union Council

Mr LEE Kwok-keung (Chairman)
Miss WONG Siu-han

People's Constitutional Society

Mr NG Kung-siu

The Frontier

Mr LAI Wing-yiu
Miss Apple CHAN

The Neighborhood and Workers Service Centre

Mr SUNG Chee-tak
Ms WONG ka-hing

Clerk in Attendance :

Mrs Percy MA

Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA

Legal Adviser

Mr LEE Yu-sung

Senior Assistant Legal Adviser

Mrs Eleanor CHOW

Senior Assistant Secretary (2)7

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I. Confirmation of minutes of meeting on 9 February 1999
(LC Paper No. CB(2) 1522/98-99)

The minutes of the meeting held on 9 February 1999 were confirmed.

II. Meeting with deputations

2. The Chairman welcomed the Administration and the deputations to the meeting.

Hong Kong and Kowloon Trades Union Council (HKKTUC)
(LC Paper No. CB(2) 1533/98-99(01)

3. Apart from the views made in the submission, a representative of the HKKTUC supplemented the following points -

1. According to Article 159, the power to propose bills for amendments to the Basic Law should be vested in the Standing Committee of the National People's Congress (NPCSC), the State Council and the Hong Kong Special Administrative Region (HKSAR). HKKTUC suggested that amendments to provisions relating to local affairs of the HKSAR should be initiated by the HKSAR on the grounds that it enjoyed a high degree of autonomy and was vested with legislative power under Article 17. On the other hand, amendments to provisions in respect of Central Government affairs, foreign affairs and defence should only be initiated by the NPCSC or the State Council. It was necessary to consult the people of Hong Kong on the former, but not the latter;

2. Article 159 also stipulated that amendment bills from the HKSAR should be submitted to the NPC by the delegation of the Region to the NPC after obtaining the consent of two-thirds of the deputies of the Region to the NPC (the Deputies), two-thirds of all the Members of the Legislative Council (LegCo) of the Region, and the Chief Executive (CE) of the Region ("the three parties"). HKKTUC proposed that for matters relating to local affairs of the HKSAR, the LegCo should have the power to initiate amendments to the Basic Law on behalf of the HKSAR. When consent was obtained from two-thirds of the LegCo Members, the Deputies should give their consent to the proposal unconditionally. The CE should also respect the decision of LegCo, unless there was good justification for not giving his consent;

3. A consultative committee on amending the Basic Law should be set up to solicit views from the public on the amendment proposal;

4. Since Article 159 stipulated that the Committee for the Basic Law of the HKSAR (CBL) should study the amendment bill and submit its views before putting it on the agenda of the NPC, a procedure should be established to consult the CBL on the amendment proposal. Should the CBL have further views, the proposal should be amended; and

5. In order to implement Article 159, a local legislation setting out the procedures for amending the Basic Law should be enacted.

4. Mr Howard Young sought clarification regarding paragraph 2 of HKKTU's submission which stated that any amendments to the Basic Law should be passed by a simple majority vote, as against a two-thirds majority mentioned in the deputation's earlier oral presentation (paragraph 3(b) above refers). The representative of HKKTUC clarified that the proposal made in the submission referred to a future mechanism. He reckoned that unless Article 159 was amended to that effect, it was necessary to adhere to the two-thirds majority rule.

5. Ms Emily LAU pointed out that HKKTUC's interpretation in paragraph 3(a) and (b) above might be in breach of Article 159, as it implied that amendments to Basic Law provisions in relation to local affairs needed not be submitted to the NPC. She asked whether the HKKTUC had sought legal advice on its interpretation. Mr CHENG Kai-nam expressed similar views and added that the Deputies and the CE would become a rubber stamping mechanism if they were expected to accept every proposal passed by the LegCo. He pointed out that under Article 159, any amendment proposed required the consent of "the three parties" who had equal status and power in the amendment process. The Chairman asked whether it was the suggestion of HKKTUC that a convention should be established so that the Deputies and the CE should respect the decision of the LegCo and give consent to an amendment to the Basic Law which was passed by two-thirds of Members of the LegCo.

6. In response, the representative of HKKTUC said that no legal advice had been sought. Although Article 159 stipulated that the power to propose amendment bills should be vested in the NPCSC, the State Council and the HKSAR, it had not spelt out the ambit of each party. It was therefore possible to interpret it in such a way that each party would be responsible for initiating amendments to Basic Law provisions regarding affairs that were within their autonomy. In this regard, HKSAR might introduce and enact amendment bills to the Basic Law that were under its purview. He said that unless the amendments were wholly or partly related to Hong Kong, otherwise it was not necessary to consult the people of the HKSAR on an amendment proposed by the NPCSC and the State Council. He also clarified that for amendments initiated by the HKSAR, consent from "the three parties" was necessary in order to comply with the Basic Law. He further explained that if the CE did not support the amendment bill passed by the LegCo, Article 49 could be invoked.

7. On the last point, Ms Emily LAU said that HKKTUC's view differed from those given by the academics and deputations who attended the last meeting. She recalled that many of them held the view that provisions like Article 49, dealing with the enactment of local legislation, should not apply to the amendments to the Basic Law. She commented that the interpretation of HKKTUC would restrict the power of LegCo Members to propose amendments to the Basic Law and complicate the amendment process.

8. The Chairman did not agree to the HKKTUC's views that the HKSAR could only initiate amendments to provisions regarding affairs within the autonomy of Hong Kong. He considered that the HKSAR could initiate any amendments to the Basic Law which was the constitutional document of Hong Kong.

9. In response to a question from the Chairman about enacting local legislation to govern the procedures for the Deputies in initiating an amendment, the representative of HKKTUC said that he was not sure of the scope of responsibilities of the Deputies and therefore not in a position to give views. He needed more time to consider the issue. In response to a further question from the Chairman, the representative said that he considered it appropriate to seek views from the CBL on the amendment proposal after "the three parties" had given their consent, and before it was submitted to the NPC.

People's Consitutionalist Society (PCS)
(LC Paper No. CB(2) 1519(01))

10. The representative of PCS said that since members of "the three parties" were not returned by universal suffrage, it was inappropriate for any of them to be given the power to amend the Basic Law. He said that the power should be vested with the people of Hong Kong. He suggested to disregard the existing mechanism for amending the Basic Law under Article 159 and set up a constitutional assembly which would be responsible for matters relating to the review and amendment of the Basic Law. Amendment proposals that had the support of a specified percentage of people could be tabled in the constitutional assembly for a vote. If the proposal was passed by the constitutional assembly and supported by a referendum, the HKSAR government, the NPC or the Central People's Government (CPG) could not raise objection or intervene in this regard.

11. Ms Emily LAU asked about the legal basis for establishing a constitutional assembly and the operation of it. She did not understand how Article 159 could be disregarded before any amendments were made to it. She said that these were practical questions which the PCS must address. The representative of PCS explained that the proposal of setting up the constitutional assembly could be put to the people in a referendum. He was not in a position to make comments on the operation of the constitutional assembly, as it was a matter for the people.

12. Addressing the concerns of Ms Emily LAU, the Chairman said that it was possible for the Government to propose two bills, one on the setting up of a constitutional assembly and the other on the procedure for conducting a referendum.

The Frontier
(LC Paper No. CB(2) 1542/98-99(01))

13. A representative of the Frontier briefed members on the submission.

14. Mr LEUNG Yiu-chung raised the following questions -

1. In paragraph 7 of the submission, the Frontier advocated that Hong Kong people should have the power to propose amendments provided that at least one percent of Hong Kong citizens aged 18 and above had indicated their support jointly to the proposal. Under the circumstances, who would be responsible for introducing the amendment proposal;

2. Before Article 159 was amended, what would be the role of the Deputies; and

3. If the Deputies did not agree to an amendment proposal, how the differences in opinion between the LegCo and the Deputies could be reconciled.

15. On (a), the representative responded that the Frontier had yet to discuss the procedural details but her initial response was that the proposal might be introduced by a LegCo Member. Mr LEUNG Yiu-chung opined that it was more appropriate for the Government to introduce it. On (b), the representative said that the role of the Deputies was to submit the proposal, which had received consent from "the three parties" and confirmed by a referendum, to the NPC. The Deputies should refrain from initiating amendments since they lacked representativeness. On (c), the representative said that the Frontier had proposed in paragraph 8 of its submission the setting up of a constitutional consultative committee to provide a forum for "the three parties" and the public to discuss and exchange views on the proposal. She stressed that the final outcome of the amendment proposal should be decided by a referendum.

16. The Chairman said that in the UK, a referendum was consultative in nature and had no binding effect on the Parliament or the Government. He said that the view of the Frontier differed from that of the academics who advocated for a consultative referendum at the last meeting. He asked how a referendum could be put in place before Article 159 was amended and how to handle amendments to Basic Law provisions relating to the relationship between the CPG and the HKSAR.

17. The representative of the Frontier replied that the position of the Frontier regarding the mechanism for amending the Basic Law in the long term was set out in paragraph 16 of its submission. The Frontier considered that amendments to local constitution was a matter within the autonomy of the HKSAR. The Basic Law should be amended to the effect that the decision of an amendment should be left with the people through a referendum and not the NPCSC or the State Council. The submission had not touched on subjects concerning the relationship between the CPG and the HKSAR. She was of the view that Hong Kong people should also be consulted on amendments relating to foreign affairs and defence of the HKSAR.

The Neighbourhood and Workers Service Centre (NWSC)
(LC Paper No. CB(2) 1519/98-99(02))

18. A representative of the NWSC said that apart from the CE and Members of the LegCo, all registered electors were qualified to introduce amendment proposals which were endorsed by a certain percentage of electors. However, it was considered inappropriate for the Deputies to have this power as they could initiate an amendment through the NPCSC. In the event that "the three parties" had divergent views on a proposal, the public should have the right to decide in a referendum the final amendment proposal. The people of Hong Kong should be consulted on all amendments to the Basic Law, including those initiated by the State Council and NPCSC. Details of the NWSC's views were set out in its submission.

19. Ms Emily LAU enquired about the circumstances under which a referendum would be held. The representative of NWSC replied that a referendum would only be held when "the three parties" could not reach a consensus on a controversial proposal. Ms Emily LAU commented that the principle adopted by the NWSC appeared to have neglected the right of people to express their views, since non-controversial proposals were not proposed to be put to the people. The representative explained that the principle was based on the assumption that the CE and the 60 LegCo Members were directly elected by the people. Since they had the mandate of the people, it was not necessary to hold a referendum on an amendment proposal that had consensus. He said that putting every proposal to the people might be regarded by some critics that Hong Kong was seeking independence.

20. Referring to paragraph 9 of NWSC's submission about the power of the Deputies, the Chairman made the following points -

1. He did not consider it appropriate for the Deputies to initiate amendments relating to Hong Kong affairs through the NPCSC, and not the HKSAR. He held the view that the Deputies, being one of "the three parties" within the HKSAR, should consult the other two parties on any proposed amendments to the Basic Law;

2. He asked the NWSC for its view as to whether the Deputies should adopt a two-step approach i.e. first to consider whether to give consent to a proposal agreed by the LegCo and the CE and then consider whether to submit the proposal to the NPC; or a one-step approach whereby the Deputies were obliged to give consent to and submit to the NPC any amendment proposals agreed by the LegCo and the CE.

21. The representative of NWSC considered that the Deputies could only exercise the right to give consent and to submit the proposal to the NPC under Article 159. They should be refrained from initiating amendments because they should not be involved in the affairs of Hong Kong. As regards the Chairman's comment in paragraph 20(a) above, he said that he needed more time to consider the issue. In response to Ms Emily LAU, the representative admitted that there was an error in the second last sentence of paragraph 6 of the submission which should mean two-thirds of the deputies of the HKSAR and not two-thirds of the deputies participated in voting.

III. Meeting with the Administration

22. The Chairman said that the meeting originally scheduled for 29 March 1999 would be cancelled since all deputations had already been received by the Panel. He suggested and members agreed that the Administration's response to the public views received by the Panel should be discussed at the next meeting. Mr LEUNG Yiu-chung added that to facilitate consideration of members, the Administration should also give its views on the eight issues set out in LC Paper No. CB(2) 1475/98-99(01).

23. Secretary for Constitutional Affairs (SCA) said that the Administration would be prepared to give a response at the next meeting, but it might not be able to cover all the issues raised by the deputations and members. While the Administration would take into account the public views presented to the Panel, the mechanism for amending the Basic Law would need to be considered within the parameters of Article 159. In addition, it was necessary to seek the views of and clarifications from Beijing on some issues which could not be resolved by the HKSAR alone, for example, affairs outside the scope of HKSAR's autonomy and the relationship between the Central Authorities and the HKSAR. He would let members know the issues which had been raised with Beijing in due course. As regards the eight issues mentioned by Mr LEUNG Yiu-chung, SCA said that the Administration had to consider the issues carefully before deciding on its stance. For issues which the Administration had yet to be able to give its views at the next Panel meeting, an explanation would be given.

24. Ms Emily LAU said that the majority of the academics and deputations received by the Panel considered that the proposal of holding a referendum in the amendment process was permissible under Article 159. She urged the Administration to reflect the wish of the people of Hong Kong in this respect to the Central Authorities. Mr Martin LEE added that SCA needed not be afraid of antagonising Beijing by raising the matter. He recalled that when the Basic Law was drafted, one of the members of the CBL had raised the subject of referendum and there was no strong objection against it. He cautioned the Administration not to presume the reaction of Beijing on certain issues. On the other hand, it should try to persuade Beijing to respect the wish of the people of Hong Kong.

25. SCA assured members that he would reflect members and the public's views on the matter to Beijing faithfully. The Administration would not refrain from doing so for fear that Beijing might not want to hear it. He pointed out that the State Council's Hong Kong and Macau Affairs Office was fully aware of the situation in Hong Kong, as any matters discussed at Panel meetings held in public would be widely reported by the local media. Mr LEUNG Yiu-chung suggested that one of the ways to remove the doubts of members was to provide the Panel with the papers on the subject presented by the Administration to Beijing. SCA replied that it might not be practicable to do so. He assured members that he would report to the Panel the essence of discussions held with Beijing.

26. In response to Ms Emily LAU, SCA said that he would visit Beijing in late April to discuss among other things the mechanism for amending the Basic Law. In fact, he had already raised the eight issues with Beijing in his last visit. He said that the Administration had yet to form a view on the subject of referendum. It would consider the practices in other countries and analyse whether it was the best way for Hong Kong. He noted that referendum was one of the means to provide a good indication of the sentiment of the public, but the government would need to consider carefully many other issues when considering an amendment proposal. The Chairman commented that if all the 60 LegCo Members were directly elected, a referendum might not be necessary.

27. Mr LEUNG Yiu-chung asked the Administration to provide a timetable for instituting a mechanism for amending the Basic Law. SCA replied that it was difficult to work out a timetable at this stage because some issues were outside the jurisdiction of the HKSAR. For instance, the role of the Deputies and the procedure for obtaining consent from two-thirds of the Deputies were matters which required discussions with Beijing.

28. Mr LEUNG Yiu-chung expressed concern that without a timetable, the establishement of a mechanism for amending the Basic Law could be postponed indefinitely. The Chairman remarked that if the process dragged on for too long, it was possible for the LegCo to move a motion to amend the Basic Law under Article 159 in the absence of a detailed amendment mechanism. It was then a matter for the CE to consider. In the event that a consenus on the mechanism could not be reached with the Central Authorities in a year or so, an agreed mechanism could be worked out by the remaining two parties, i.e. the CE and the LegCo. He asked whether the Administration had given consideration to such an option. SCA responded that members should not be too pessimistic because it was the consensus of all parties concerned that a mechanism for amending the Basic Law should be established. It was only the details of the mechanism which required careful deliberation. As he had mentioned earlier, there were issues which required discussions with Beijing. In further response to members, SCA agreed to provide a rough timetable to the Panel, but stressed that its adherence would be subject to the progress of discussions with the relevant parties.

Adm

29. Mr Martin LEE said that under Article 159, there were only two areas that were outside the control of the HKSAR. Firstly, the part concerning the power to propose amendment bills by the NPCSC and the State Council and secondly, the activities that followed after an amendment proposal was submitted to the NPC by the Deputies. He said that any other procedures including conducting a referendum were issues which could be decided by the HKSAR. He cautioned that the Administration should not attempt to seek Beijing's views on procedures in which the HKSAR had full autonomy.

30. SCA responded that he disagreed with Mr LEE on two points. Firstly, the procedures for regulating the Deputies in the amendment process needed to be sorted out with the NPC. Secondly, it was necessary to ascertain the implications on HKSAR of amendments initiated by the NPCSC and the State Council.

31. A discussion on whether the Panel should arrange a closed door meeting with the Deputies followed. Most members considered that meetings held by the Panel should be open to the public. However, it was up to individual members to have informal discussions with the Deputies or members of other political parties.

32. The Chairman informed members that he had written to the CE inviting him to attend future meetings of the Panel to discuss the mechanism for amending the Basic Law, and the CE had replied that SCA would represent him in these discussions.

IV. Date of next meeting

33. The next meeting would be held on 19 April 1999. Members agreed to discuss the following issues -

1. Mechanism for amending the Basic Law;

2. Electoral Affairs Commission's draft Guideline for District Councils Election; and

3. Progress of Year 2000 compliance exercise in Government, Government-funded and Government-regulated organizations.

34. The meeting ended at 4:40 pm.

Legislative Council Secretariat
13 May 1999